San Diego State strength coach David Ohton yesterday filed an appeal to reinstate his whistle-blower protection lawsuit against the school.

Ohton's suit sought damages for the retaliation he claimed to have suffered after it was disclosed he aided a California State University audit of the SDSU athletic department in 2002.

Ohton had until Monday to appeal his case after Judge William Nevitt threw the suit out of San Diego County Superior Court on March 4. In his summary judgment ruling, Nevitt tossed out the suit on the narrow basis that the CSU system had internally addressed Ohton's retaliation complaint within the required 18 months.

The judge did not address the scope or truthfulness of a CSU investigation into Ohton's complaint – an issue his attorneys said should be heard in a trial under the California Whistleblower Protection Act.

Nevitt unfairly "did not take into account that the investigation was really a cover-up," Ohton's attorney, Dennis Schoville, said yesterday.

The information Ohton provided to the auditor led to the departures of former Athletic Director Rick Bay, two of his top aides and an equipment manager. Because of his cooperation with the audit, Ohton claims he lost his job as the strength coach of the football team and had his hours restricted.

After looking into Ohton's retaliation claims, CSU Vice Chancellor Jackie McClain determined that Ohton "made factually false comments" when he passed along allegations about football coach Tom Craft's excessive drinking in New Mexico the weekend of an SDSU game in 2002. That determination was "central to the university's decision to take the action it did (to remove him as football strength coach)," according to her final letter of determination in the Ohton matter in December 2003.

But declarations by witnesses show that Ohton's allegations about Craft were corroborated. Ohton attorneys cited other inconsistencies as proof that SDSU and CSU "whitewashed" Ohton's claims to make him go away and avoid admitting there was merit to the allegations.

Ohton attorney Lou Arnell told Nevitt at the March 4 hearing that SDSU Vice President Sally Roush "did the investigation on the drinking (and) falsified the results."

While taking McClain's deposition, Schoville showed her a sworn declaration by booster Don Sutton about witnessing Craft in New Mexico. Asked by Schoville if the Sutton declaration might help change her mind about whether Ohton made false comments about Craft, McClain said, "I might ultimately reach that conclusion," but that she wanted more information.

Sutton's declaration says, "I told Ms. Roush what I knew."

Ohton still works at SDSU as a strength coach for other sports. A ruling from the state Courts of Appeal could take several months.

Also yesterday, Nevitt ruled that Ohton should pay CSU $64,000 in costs related to the suit – a ruling that also could be overturned on appeal.